35 Minn. 451 | Minn. | 1886
The findings in this case were filed January 12th; judgment entered thereon April 29th; appeal taken September 4th; case served December 1st, and settled February 24th, following. Of course, this shows a delay in the settlement of the case beyond the time specified in the statute; but, in view of the uncontroverted statements of counsel, we are of opinion that the delay was waived, and the settlement in fact made under the clause of the statute providing for a settlement within “such further time [beyond that specified] as may be stipulated or granted.” Gen. St. 1878, c. 66, § 255. Upon this point the participation of the respondent’s counsel in the making up of the case is significant. The motion to strike the settled case from the record is accordingly denied.
The defendant Nash was the owner of the land, and of the buildings thereon, for the construction of which the materials to which this action relates were furnished by plaintiffs. The construction ofl the buildings, including providing of materials, was originally let byl Nash to McDonald. McDonald made a written agreement with plain-1 tiffs for the furnishing, for a lump price, of such materials as are par-1
The court further held that plaintiffs were not entitled to any relief in this action, but that defendant was entitled to costs; and judgment against the plaintiffs was entered therefor, and for the dismissal of the action.
Upon the findings the plaintiffs were clearly entitled to judgment for a lien for the price of the window weights, ($64.84,) and the other items, amounting to $36.50, and, according to what we understand to be the proper and usual practice in actions of this kind, they were entitled to a personal judgment against the defendant for the whole amount for which he was found to be indebted to them, which was, in this case, $462.35. On account of the erroneous refusal to allow the personal judgment to be taken against the defendant, and to award a lien for the window weights ($64.84) and the other articles, ($36.50,) in all amounting to $101.34, the judgment must be reversed, and the case remanded.
We may add that we have found no difficulty in holding the defendant liable on the agreement between him and plaintiffs, by which he assumed the agreement with McDonald. The case is not one in which his agreement is to pay the debt of another, (McDonald,) within the statute of frauds, but a case in which he made a new and original contract, on his own account, upon a fresh consideration, viz., that plaintiffs would go on, and furnish the unfurnished re
The writing which is claimed to waive or release plaintiffs’ lien right does not appear to be supported by any consideration, and is therefore ineffectual.
We have been in some doubt as to whether it was best to order a new trial, or to direct judgment to be entered, upon the findings of fact, in accordance with the foregoing views. On the whole, we have concluded that the latter course is best for all parties concerned.
So far as the balance of indebtedness found against the defendant ($462.35) is made up on account of such materials as were to be furnished for the lump price or sum heretofore mentioned, the plaintiffs would be entitled to no lien as against defendant; for the contract for furnishing them having been entire, and for an entire price, there is no way of separating the price of what was furnished to McDonald from the price of what was furnished to Nash; and, besides this, the court below was unable to find what quantity, number, or value thereof was furnished to either. Morrison v. Minot, 5 Allen, 403; Graves v. Bemis, 8 Allen, 573; Mulrey v. Barrow, 11 Allen, 152; Whitney v. Joslin, 108 Mass. 103.
As to the items before mentioned, amounting to $124.64, we are inclined to believe that, upon the evidence, the court might well have found that they were furnished to Nash after McDonald left the job, but the failure to find at all, as to the time when they were furnished, should have been corrected by a motion to amend the findings of fact.
This is all which it appears to be necessary to say in this case, and the result is that the judgment is reversed', and the case remanded, with directions for a personal judgment against defendant Nash for $462.35, with interest from January 12, 1885, (the date of the finding,) and for a judgment for a lien for $101.34 of said sum of $462.35, with interest from the same date. As respects the matter of interest, the result may not be exactly accurate, but the inaccuracy is so small that it may be well disregarded.
Judgment reversed, and case remanded.